[2004] KEHC 2448 (KLR)
The court held that the applicant lacked locus standi to seek revocation or annulment of the grant of letters of administration because his father, the alleged purchaser and beneficiary, was still alive and had not authorized the applicant to act on his behalf. Furthermore, the applicant failed to provide...
Source-derived case information.
- Citation
- [2004] KEHC 2448 (KLR)
- Parties
- Applicant: Daniel Njuhiga Kinuthia; Respondent: Peter Ngigi Gichia; Respondent: Patrick Kabiti Gichia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2559 of 2002
- Procedural Posture
- Succession Application / Ruling on Preliminary Objection
- Outcome
- application struck out with costs to respondents
- Judges
- FI Koome
- Legal Topics
- Grant of Letters of Administration, Revocation of Grant, Locus Standi, Priority of Beneficiaries, Creditor Claims, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Njuhiga Kinuthia
Applicant
Peter Ngigi Gichia
Respondent
Patrick Kabiti Gichia
Respondent
Procedural Posture
Succession Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the applicant has locus standi to seek revocation or annulment of the grant of letters of administration.
- 2 Whether a purchaser's claim against the estate should be pursued through succession proceedings or by separate civil action.
- 3 Whether the applicant is entitled to be appointed as an administrator of the estate.
Ratio Decidendi
The court held that the applicant lacked locus standi to seek revocation or annulment of the grant of letters of administration because his father, the alleged purchaser and beneficiary, was still alive and had not authorized the applicant to act on his behalf. Furthermore, the applicant failed to provide documentary evidence of the sale agreement or any power of attorney. The court found that the applicant's claim, being that of a creditor or purchaser, should be pursued through a separate civil action under the Civil Procedure Rules and not by way of objection in succession proceedings. The application was therefore incompetent and without merit.
Court Disposition
application struck out with costs to respondents
Orders
- The application for revocation or annulment of the grant is struck out as lacking merit.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
SUCCESSION CASE NO. 2559 OF 2002
IN THE MATTER OF THE ESTATE OF GICHIA KABITI (DECEASED)
(Ruling on Preliminary Objection dated 21st October 2003)
RULING
Daniel Njuhiga Kinuthia filed the summons seeking the revocation or annulment of the grant of letters of administration issued to Peter Ngigi Gichia and Patrick Kabiti Gichia. The grant was confirmed on 10th April 2003. The summons is supported by his affidavit sworn on 4th October 2003.
The gist of the matters deposed in the affidavit can be summarized as follows:
That the applicant’s father was a beneficiary of the estate of the deceased person by virtue of being a purchaser of 0. 93 acres of parcel No. CHANIA/KAIRI/228.
That the sale took place in 1963 and his father has been in possession of the land and has developed it with coffee trees. That the administrators have subdivided the deceased ‘s land thereby leaving out the applicant’s father. The applicant therefore contends that he is entitled to be appointed as an administrator alongside the deceased sons.
The objectors filed a notice of preliminary objection dated 21st October and raised the following issues:
The applicant has no local standing in this matter his father is still alive and therefore he is a total stranger. Secondly and most importantly the applicant’s claim is that of a creditor who purchased land and if there is a bleach of a contract entered to with the deceased the applicants remedy lies in filling an application under order 36 of the Civil Procedure Rules, which rules are clearly adopted under the Law of Succession but not in filling an objection.
I have carefully considered the application and the submissions by both counsel for both parties, and also the provisions of the law. The persons who have priority in law to apply for grant of Representation are provided for under Section 66 of Cap 160 and so is the order of preference.
It is the spouse or spouses, with or without association with other beneficiaries. Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests. The Public Trustee, Creditors.
In view of the above provision the applicant has no priority in being granted the Letters of Administration. The applicants did not attach any documents to show the sale agreement or even the document appointing him as the Attorney of his father, in this respect I find his application incompetent.
I also agree with counsel for the administrators that his remedy should be found elsewhere but not in the current application for the revocation of the grant.
Accordingly the application is struck out as it lacks merit, with costs to the respondents.
Ruling read and signed on 23rd April, 2004.
MARTHA KOOME
JUDGE